Wednesday, April 25, 2012

witnesses and other discovery materials in federal lawsuits show that the drugs, available only by prescription, are not being administered by licensed medical professionals.

Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment, said lethal injection has been challenged around the country on various grounds. California and Maryland have put executions on hold because of lethal injection issues.

However, Dieter said he is aware of no other challenge that has claimed executioners are violating medical licensing laws and regulations.

"In almost all cases, there are lethal injection challenges accompanying appeals as these executions get close," Dieter said.

No executions are scheduled at this time in Virginia, which has executed more people than any state except Texas since the U.S. Supreme Court reinstated the death penalty in 1976. Dieter said the federal government and all 34 death penalty states use lethal injection, although some have other methods available as backup. In Virginia, condemned inmates are allowed to choose between injection and electrocution. If they decline to choose, they get the injection.

The administration of those intravenous drugs by unlicensed personnel has been problematic, according to the complaint filed by Shapiro and Leibig.

"They have no idea what they're doing," Shapiro said in a written statement.

The lawyers claim that along with failing to determine whether a prisoner is unconscious before administering the lethal drugs, Virginia's executioners have administered recalled drugs, misused a drug for general anesthesia and made mistakes in paperwork documenting the handling and administration of chemicals.

Execution teams also have spent substantial time during training sessions planning barbecues, picnics and other events, the filing says.

Stephen A. Northup, executive director of Virginians for Alternatives to the Death Penalty, said Virginians "should be concerned, if not shocked" by the allegations.

Monday, April 16, 2012

With the impending retirement of Steve Cooley, Los Angeles County is poised to have a new district attorney for the first time in 12 years.

The June 5 primary election comes at a crucial moment, when budget crises and realignment are forcing dramatic changes in the criminal justice system.

The race to lead the largest local prosecutorial agency in the nation is shaping up to be intensely competitive, the first in almost half a century without an incumbent on the ballot.

Five deputy district attorneys, plus the Los Angeles city attorney, are vying for the job.

City Attorney Carmen Trutanich said he felt compelled to run because the City Attorney's Office - which prosecutes misdemeanors, not felonies - does not give him enough power to keep the public safe.

"Right now, I can't change the way City Hall is operated, because they're my clients," Trutanich said.

"I can't prosecute mortgage fraud and bank fraud and those who are wrongly foreclosing on homes; I can't take down the banks that are creating securities and lending issues and breaking pension plans and losing millions of dollars; and I can't go after child molesters, gang members and other predators, because all of those involve felonies."

While Trutanich is indeed the head prosecutor for the city of Los Angeles, he recently lost a court fight over how he could describe himself on the ballot. He wanted to use the title "Los Angeles chief prosecutor" but a judge struck that down, instead allowing "Los Angeles city prosecutor." His campaign rival had claimed the original term sought to mislead voters that he was already the district attorney for the county of Los Angeles.

In touting his candidacy, Trutanich noted the City Attorney's Office saved taxpayers millions of dollars by avoiding settlement payouts and by collecting debts, even as its staff was decimated by budget cuts.

Trutanich had made a campaign pledge in 2009 that he would not seek higher office until he had served two terms as city attorney. If he did, he said, he would take out a full-page newspaper ad with his photo and the words, "I am a liar," and donate $100,000 to a children's charity.

He has yet to finish his first term.

"That was a mistake," Trutanich now says of the promise.

"Things change," he added. "I'm guilty of not having a crystal ball - not lying."

He is trying to raise the money for the donation, but does not intend to take out the newspaper ad.

Cooley said the public should try to force Trutanich to be true to his promise.

"Someone should sue him and see if they can enforce that promise," Cooley said. "A lot of people voted in that election based on that promise. It was a campaign ploy or trick, and people were lured by it."

It was Cooley who persuaded Trutanich to leave private practice and run for city attorney.

In the search for his own successor, however, Cooley is spurning his old friend and instead endorsing his chief deputy, Jackie Lacey.

If elected, she would be the first person of color, and the first woman, to lead the office since it was founded in 1850.

Cooley, however, was less concerned about making history than about making sure he backs the candidate best suited for the job.

"Jackie Lacey is easily, easily, very well qualified to be D.A. based upon her experience in the office, her temperament, her acquired skills, her judgment, and her ability to collaborate with others in the criminal justice system," Cooley said.

Lacey lags in fundraising

Lacey, a Granada Hills resident, lags behind the far better known Trutanich in fundraising but expressed confidence voters "do not want a politician in the D.A.'s Office."

"Can you imagine someone so political in charge of the Public Integrity Unit?" she said. "That person would be susceptible to using that unit to go after their enemies."

"I believe that the citizens of L.A. County, as well as its prosecutors, deserve good, mature, sound leadership at the helm," Lacey added. "Some of my rival candidates are, quite frankly, bullies, and I don't think that type of relationship is good for working with people in the justice system."

Jackson - who put away Phil Spector and the mastermind in the murder case of racing legend Mickey Thompson - said his skills would serve him well as D.A.

"The retirement of Steve Cooley would create a vacuum at the top of the office, and I think that vacuum should be filled by a tried-and-true veteran, seasoned prosecutor who understands what it means to perpetuate the mission of the office, which is ultimately to seek public safety for the community we serve."

Also running are deputy district attorneys Bobby Grace, Danette Meyers and John Breault, though the latter has not campaigned at all.

Grace prosecuted one of the most prolific serial killers in Los Angeles history, Chester Turner, in the murder of 10 women and an unborn child.

He said one of his top priorities as D.A. would be to battle corruption and fraud.

Meyers, who prosecuted Lindsay Lohan, meanwhile, has a list of things that she believed Cooley could have done better as D.A., and vowed to address them if elected to replace him.

"The reason I'm running for D.A. is to institute change within the office, and I'd like the community to recognize that our office is a fair and just office."

For the most part, the candidates have roughly similar positions on a variety of issues.

All vowed to seek the death penalty in the most heinous cases if it remains the law in California, though a proposed ballot measure in November could change that.

They all embrace Cooley's three-strikes policy, which is to seek the maximum sentence of 25 years to life only if the third strike is a violent or serious felony, or if the criminal previously committed other heinous acts that would make him or her a danger to society.

They also support taking steps to help youths flourish in school and job training programs, and prevent truancy; and put more effort into prosecuting environmental and high-tech crimes.

Individually, Trutanich wants to create task forces against gangs, environmental crimes and graffiti. He also wants to create a neighborhood prosecutor program and ask state legislators to strengthen laws against sexual predators, among other plans.

Candidates tell goals

Lacey, meanwhile, vowed to be "progressive about alternative sentencing," including sending lower-level offenders to the successful Second Chance Women's Reentry Court, for example, where they can plead guilty to their crimes and enter treatment instead.

She also wants to create a dedicated unit for environmental crimes, and train more prosecutors to fight identity theft.

Jackson, on the other hand, believes criminals' sentences should not have to be shortened because of overcrowding in jails and prisons, "without due consideration to recidivism, the punishment that they should get, or to the rehabilitation they would have had if they had stayed in."

He is urging state legislators to let local counties enter into contracts to send their inmates to out-of-state facilities.

Grace called for "embracing rehabilitation and reentry programs" and partnering with organizations to boost ex-cons' chances of going straight.

Meyers wants reforms in realignment that would strengthen county supervision of parolees, particularly those who stole large amounts of money from particularly vulnerable victims, so they can pay back their debts. She also wants to send drug dealers to state prison instead of county jails.

Mark A.R. Kleiman, professor of public policy at UCLA, suggested voters look at who they believe is the best manager, not the best lawyer.

"This is the largest prosecutorial office in the country, so the most obvious qualification is managerial competence," he said.

"That's the difficulty with prosecutorial offices - they tend to be run by lawyers rather than by managers or by people who are interested in crime policy.

"So you wind up with somebody who has very good skills in persuading a jury and assembling evidence, but is not necessarily a very careful thinker about how to reduce crime."

Attorneys for convicted Nazi war criminal John Demjanjuk, who died last month in Germany, have asked a U.S. appeals court to restore his citizenship.

The attorneys asked the 6th U.S. Circuit Court of Appeals in Cincinnati to reinstate Demjanjuk’s citizenship or to order a hearing on the question, the Associated Press reported over the weekend.

The request was filed late on the night of April 12. The lawsuit charged that U.S. District Court Judge Dan Polster in Cleveland made a mistake by not reopening the case when Demjanjuk requested it last year.

Attorneys had asked the judge to reopen the case, charging that the government withheld documents that could have helped Demjanjuk’s case.

Government prosecutors have until next month to file a response to the lawsuit, according to the AP.

Demjanjuk died at the age of 91 in an old-age home in southern Germany, where he was free while he appealed his conviction last year by a Munich court for his role in the murder of 27,900 people at the Sobibor death camp in Poland.

Born and raised in Ukraine, Demjanjuk immigrated to the United States following World War II. In 1986 he was sent to Israel to face trial on charges of being the notorious Treblinka guard "Ivan the Terrible." An Israeli court sentenced Demjanjuk to death, but the Israeli Supreme Court ordered him released due to reasonable doubt while noting that substantial evidence emerged during the trial identifying him as a guard at Sobibor.

Demjanjuk returned to suburban Cleveland in 1993 and resisted multiple attempts to strip him of his citizenship and deport him again. But he lost that battle in 2009, and U.S. authorities deported him to Germany. Last May he was convicted for his crimes in Sobibor, and he was sentenced to five years in prison.

Demjanjuk reportedly was buried in secret in an undisclosed location in the United States on March 31.

Sunday, April 15, 2012

Sarah Haselop, associate attorney at the San Francisco family law firm Heath-Newton LLP, was honored by the UC Hastings Center for Gender and Refugee Studies (CGRS) on Wednesday, April 10 for her pro bono work on the San Francisco Lawyers' Committee for Civil Rights' (LCCR) asylum program.

For four years, Haselop has provided pro bono legal representation to individuals seeking refuge in the United States. She has provided direct representation in many cases involving gender-based violence against women in their country of origin.

"The United States is, and always has been, a safe harbor for individuals who have found the strength and courage to leave everything behind their home countries to find a new and better life for themselves," says Haselop. "It is my deep honor to help these brave people."

In addition to her counsel, Haselop has helped mentor fellow attorneys and conducted intake interviews for the LCCR. Due to the nature of her client's claims, Sarah has worked with the CGRS at UC Hastings College of Law, which has been instrumental in providing the resources to create legal argument and identify case precedents in asylum law.

A recently deceased Ohio autoworker convicted of Nazi war crimes should have his U.S. citizenship restored because the American government withheld potentially helpful material, his attorneys said.

The defense team for John Demjanjuk, who died March 17 in Germany at age 91, asked the 6th U.S. Circuit Court of Appeals in Cincinnati to restore his citizenship or order a hearing on the case.

The filing late Thursday night said U.S. District Judge Dan Polster in Cleveland erred last year in refusing to reopen the citizenship case at Demjanjuk's request.

Demjanjuk, who lived for decades in Seven Hills in suburban Cleveland, was convicted by a Munich court in May on 28,060 counts of being an accessory to murder at the Sobibor death camp in occupied Poland. The Ukrainian-born man maintained that he had been mistaken for someone else; he died while his conviction was under appeal.

A political leader in the Ukraine told The Associated Press that Demjanjuk's body was returned to the U.S. for burial. Rostislav Novozhenets, deputy head of the nationalist Ukrainian Republican Party, said in a telephone interview that Demjanjuk was buried March 31 at an undisclosed location. Family members living nearby will care for the gravesite, Novozhenets said.

Dennis Terez, a public defender representing Demjanjuk, said Friday he couldn't comment on where Demjanjuk was buried.

Prosecutors have until next month to file a response to the citizenship issue, Terez said. The defense will then get a chance to reply.

The government rejected the defense's arguments.

"In a reasoned and meticulously supported decision, Judge Polster rejected these same contentions by Mr. Demjanjuk's lawyers," spokesman Mike Tobin, of the U.S. attorney's office in Cleveland, said in an email.

UC Hastings Center for Gender Studies honors San Francisco attorney Sarah Haselop for volunteering her professional time to help individuals seek refuge in the United States from gender-based violence against women in their country of origin

According to the CGRS, thousands of migrants flee the violence and persecution of their native countries and seek refuge in the United States every year. Many of them can't read or write in English and come from countries that do not guarantee the right to due process.

Because of this, these victims are rendered virtually helpless when it comes to understanding the complex U.S. immigration and asylum laws and are unable to obtain sound legal advice. It is up to pro bono attorneys, organized and supported by groups such as the LCCR and the CGRS, to fill this gap.

About the UC Hastings Center for Gender and Refugee Studies
UC Hastings College of the Law was founded in 1878 as the first law department of the University of California. The Center for Gender & Refugee Studies (CGRS) provides legal expertise, training, and resources to attorneys representing asylum seekers, advocates for the protection of refugees and advancement of refugee law and policy, and uses domestic, regional, and international human rights mechanisms to address the root causes of persecution. For more information, visit uchastings.edu.

About the San Francisco Lawyers' Committee for Civil Rights
For more than 40 years, the Lawyers' Committee for Civil Rights of the San Francisco Bay Area has worked to advance, protect and promote the legal rights of communities of color, immigrants and refugees -- with a specific focus on low-income communities and a long-standing commitment to African Americans. Lawyers' Committee staff, working with hundreds of pro bono attorneys, provides free legal assistance and representation to individuals on civil legal matters through direct services, impact litigation and policy advocacy. For more information, visit lccr.com.

About Heath-Newton, LLP

Heath-Newton, LLP is a San Francisco family law practice focused on families. These San Francisco divorce attorneys pride themselves on working with clients from all backgrounds and lifestyles. Heath-Newton, LLP specializes in premarital agreements (prenups), same-sex marriages and domestic partnerships, divorce, child support, spousal support, adoption, and child custody in San Francisco and the Bay Area.

For more information about asylum laws, or any family law matters, please contact San Francisco divorce attorneys Heath-Newton, LLP by calling (415) 992-5038, visit www.heathnewton.com, or stop by their office located at 240 Stockton Street, Suite 300 in San Francisco, California.

Saturday, April 14, 2012

A Texas Supreme Court advisory board on Friday debated forms intended to make it easier and less expensive for poor Texans to get divorced — hearing from proponents who say the forms would make the legal system more accessible, and attorneys' groups who argue family law is too complicated to manage without a lawyer.

Last year, the court created a task force to design forms so that people who can't afford attorneys could participate in legal proceedings, such as filing for divorces, especially in simple cases involving no children and few assets. Texas is one of just 13 states where couples can't simply fill out a court-approved form and file for divorce.

But the State Bar of Texas has opposed the proposed forms — arguing that family law is too complex and expressing concern that allowing people to practice it themselves could encourage them to tackle other legal endeavors on their own.

The task force presented its proposed forms to the full advisory board, which spent hours debating them. It's unclear, however, whether members will vote to approve them to the Supreme Court. And, whether they formally approve the forms or not, the court will still consider the forms on its own.

Patricia McAllister, executive director of the Texas Access to Justice Commission, said 6 million Texans qualify for court-assisted legal aid but there are only enough pro bono attorneys and other legal groups to assist about 20 percent of them. She said that even if every licensed lawyer in the state agreed to represent a low-income client for free, only about 40 percent of demand would be met.

"What you're seeing is that there are more people who are coming to the courthouse to represent themselves because they can't get help through legal aid and they cannot afford a lawyer," said McAllister, whose group was created in 2001 with the support of the state Supreme Court and the state bar.

Do-it-yourself legal forms are available for purchase on the Internet or at Office Depot — but they are sometimes are not admissible in Texas courts. Steve Bresnen, a lobbyist for the Texas Family Law Foundation, suggested the task force's proposed forms may not hold up in court either, saying they were "riddled with errors."

Both Bresnen and Tom Vick, speaking on behalf of the state bar, bristled at suggestions that attorneys around the state oppose the forms because they could ultimately lead to decreased income for family law lawyers.

"The forms that are before you aren't going to cost any private lawyer to lose a dollar," Vick said.

During Friday's discussion, board members raised the point that some Texas judges currently refuse to accept forms that have been filed without aid of an attorney, while others demand forms in English. By approving its own forms, the Supreme Court could compel judges to accept divorce forms more readily.

But others questioned how the state could guarantee the people using the forms are actually too poor to afford an attorney.

Judy Warne, a district judge in Harris County, suggested that poor Texans should be encouraged to wait until they had enough money to hire a lawyer before filing for divorce.

As an alternative, she said that a hotline could connect poor couples looking to separate with lawyers that charge as little as $500 for an uncontested divorce. The state bar also suggested requiring lawyers just out of law school to take more pro bono cases.

The U.S. soldier charged in the shooting deaths of 17 Afghan villagers last month will not participate in an Army review aimed at determining his mental state, his attorney said Friday

Staff Sgt. Robert Bales was expected to face what's called a "sanity board" examination by Army doctors from Walter Reed Army Medical Center, seeking to establish whether he's competent to stand trial and what his mental state was at the time of the March 11 pre-dawn massacre in two southern Afghanistan villages.

But his civilian lawyer, John Henry Browne, said Friday he instructed Bales to invoke his Fifth Amendment right to remain silent because the Army will not allow Bales to have an attorney at the sanity board review and will not allow the examination to be recorded. The Army also rejected his request to have a neuropsychologist on the board, Browne said.

"A member of the military does not give up constitutional rights by being in the military," Browne wrote in an e-mail to reporters. "Since the defense will have no way to know questions asked or answers given, Sgt. Bales' civilian attorneys have instructed him to invoke his Fifth Amendment right to remain silent and NOT participate in the sanity board process, particularly since his Sixth Amendment right to counsel has been denied during the board process."

Maj. Chris Ophardt, a spokesman at Joint Base Lewis-McChord south of Seattle, said that typically, such examinations are not recorded and defendants do not have their lawyers present. Such proceedings are medical, not legal, he said.

"They want to make sure the board can ask the questions they need to ask to make a fair determination, without any outside influence," Ophardt said.

The sanity board had been expected to explore such issues as Bales' deployment history, including a concussion that Browne has said he suffered during one of his three prior deployments to Iraq, as well as any prescription medication he may have been taking and whether some sort of psychotic episode led to the shooting.

In most cases, the only information given to prosecutors following a sanity board review consists of a brief diagnosis and the answers to three yes-or-no questions: Was the defendant suffering from a mental disease at the time of the offense? Was the defendant able to appreciate the wrongness of his or her actions? Is the defendant currently suffering from a mental disease and thus unable to understand the legal proceedings?

The answers to those questions help prosecutors decide whether it's fair to have the defendant stand trial, Ophardt said. If the answers are mixed, investigating officers can seek more information about the defendant's mental state during a pretrial hearing or further psychiatric care for the defendant.

However, if a defendant raises a mental health-related defense, prosecutors can obtain more of the details of the sanity board review, including any clinical interviews with the defendant.

It wasn't immediately clear if the sanity board would proceed without Bales' cooperation.

Bales, 38, a father of two from Lake Tapps, Wash., is accused of walking off the base where he was deployed in southern Afghanistan with a 9 mm pistol and M-4 rifle outfitted with a grenade launcher. Officials say he walked to two local villages, where he killed four men, four women, two boys and seven girls, and then burned some of their bodies.

Dan Conway, a former Marine who is now an experienced civilian military defense lawyer, said that while it may not be typical for the Army to record or allow a lawyer to attend sanity board reviews, it's "perfectly reasonable, especially in a case of this magnitude."

"You want to be very cautious in allowing a client to be subject to that sort of clinical interview," Conway said. "It's his client sitting alone with a bunch of doctors. You don't want the doctors taking on the role of investigators."

If Bales continues to refuse to participate in the sanity board, a judge could possibly bar him from relying on a mental-health defense at his court martial, Conway suggested.

Browne also said Friday that one of the Army lawyers assigned to the defense team, Maj. Thomas Hurley, stepped aside in what Browne described as a mutual decision. The pair had disagreed about certain aspects of the defense strategy, and, Browne said, Hurley ultimately leaked an e-mail from Browne to a news agency.

The Army confirmed that Hurley was no longer on the defense team, but declined to say why. Capt. Anthony Osborne remains on the defense team.

Wednesday, April 11, 2012

Jerry Sandusky's defense against child sex-abuse charges has cost an estimated $200,000 so far, and his lawyer said uncertain financial resources have caused the defense team to forego psychological testing of the former Penn State University assistant football coach as his trial approaches in June.

Five months after a Pennsylvania grand jury outlined the first charges against Sandusky, attorney Joe Amendola told USA TODAY that financial considerations also have limited defense investigations into the backgrounds of Sandusky's eight known accusers.

The remaining two alleged victims have not yet been identified by prosecutors.

"We have not been able to develop full profiles of these people," the attorney said in an interview just days prior to Monday's sweeping court order which now prohibits prosecutors, defense lawyers and potential witnesses from making public comments about the case.

Amendola said his client has "cashed out" his retirement account and is drawing on a insurance policy from the Second Mile, the organization he founded to assist at-risk children, to help pay for his defense. The insurance company, Federal Insurance Co., however has gone to federal court to contend that it is not obligated to pay defense costs, citing the former coach's alleged "reprehensible acts."

Pending a resolution of that lawsuit, the company has paid defense expenses totaling about $125,000, Amendola said. Attorneys representing the insurance company did not respond to inquiries seeking comment.

Nils Frederiksen, a spokesman for Pennsylvania Attorney General Linda Kelly, declined to comment on the cost of the state investigation.

The overall defense budget is funding the work of Amendola, the assistance of attorney Karl Rominger and two part-time investigators to prepare for the June 5 trial.

"This case screams for a team of lawyers and investigators — a team of specialists," Amendola said.

Instead, he said, Sandusky is spending his days sequestered under house arrest calling potential witnesses "who will be helpful" to the defense. Some days, Amendola said, Sandusky calls him "15 times a day" relaying information or posing questions.

Legal analysts said the defense costs are substantial, but not necessarily surprising in such a case.

"The money goes pretty quickly when you are preparing (pre-trial) motions, developing legal strategy and spending the time to review the evidence collected in this case," said Aitan Goelman, a former federal prosecutor. "I don't think $200,000 is out of the question."

But without funding for such things as background investigations of Sandusky's accusers, the defense may be lacking "really important" information for use during the coach's upcoming trial.

"For a criminal defendant, you want to be able to call (witnesses') credibility into question," Goelman said.

Christopher Mallios, a former Philadelphia prosecutor, said Amendola "squandered" an opportunity to learn more about the victims and the government's case when he waived the preliminary hearing back in December, where the state is required to offer evidence to support a prosecution.

"If they haven't been able to do full background investigations, that falls squarely on his shoulders," Mallios said.

Johnson & Johnson hid the risks of the antipsychotic drug Risperdal to boost sales and should be held liable for misleading Arkansas doctors and patients, one of the state's lawyers told a jury in Little Rock today.

J&J's Janssen unit made misleading claims about Risperdal's effectiveness in a letter to more than 6,000 Arkansas doctors and downplayed its diabetes risks on warning labels, lawyer Fletch Trammell said. Arkansas is seeking more than $1.25 billion in penalties over the Risperdal marketing campaign.

"They hid those risks, they buried them in the label," Trammell told jurors in closing arguments of the state's lawsuit over the marketing campaign. Janssen officials "had a lot at stake. If Risperdal went down, the company went down, too."

It's the fifth jury trial over states' claims that J&J, the second-biggest maker of health products, hid Risperdal's diabetes risks and tricked Medicaid regulators into paying millions of dollars more than they should have for the medicine. J&J ended the most-recent trial in Texas with a $158 million settlement in January.

J&J's lawyers countered that jurors hadn't heard testimony from a single Arkansas resident who claimed to be harmed by the drug and state officials never warned consumers about Risperdal's alleged health threats.

Deceptive Marketing
"They didn't run off and sound the alarm at the time this suit was filed," James Simpson, a lawyer for the companies, told jurors today. Arkansas officials never said "Whoa, whoa, whoa, this stuff is dangerous."

Risperdal's global sales peaked at $4.5 billion in 2007 and declined after the company lost patent protection. The drug generated $3.4 billion in sales in 2008, or 5.4 percent of New Brunswick-based J&J's revenue, according to company filings. Sales of the drug fell to $527 million in 2010, according to earnings reports.

Along with contending that J&J and Janssen defrauded the Medicaid program by failing to properly outline the antipsychotic medicine's risks on the warning label, Arkansas officials allege J&J officials deceptively marketed the drug as safer and better than competing medicines.

The state also argues that the companies marketed the drug for "unapproved uses, including various symptoms in children and the elderly" after being warned by federal authorities to halt such sales, according to the state's suit.

2004 Investigation
The U.S. has been investigating Risperdal sales practices since 2004, including allegations that the company marketed the drug for unapproved uses, J&J executives said in a U.S. Securities and Exchange Commission filing last year.

The U.S. Justice Department is demanding that J&J pay about $1.8 billion to resolve the civil claims by federal regulators and some state attorneys general, people familiar with the settlement talks said last month.

Monday, April 9, 2012

An attorney for one of two lawyers locked in a fee-splitting dispute wants the 11th District Court of Appeals to reconsider its decision last month that sends the case into arbitration.

In the meantime, attorney Michael Rossi also wants the appellate court to certify that a conflict exists so the Ohio Supreme Court could hear the case of attorney Roger Bauer, who is suing attorney Martin White for half of the record multi-million dollar judgment he earned in a 2010 malpractice case.

The decision by three appellate judges last month affirmed a lower court decision by Common Pleas Judge Peter Kontos that allows the Ohio State Bar Association to settle the dispute.

''The law is well-established in Ohio that the sole avenue for resolution of legal fee disputes between lawyers in different firms is mediation and/or arbitration by a local bar association or the Ohio State Bar Association,'' appellate Judge Mary Jane Trapp wrote in her opinion.

But Bauer, through Rossi, claims that his agreement with White was nothing more than an oral contract and the case should be viewed that way. They want the case sent back to Kontos to be heard as a breach-of-contract case.

''The Bauer-White fee-sharing agreement was not in writing. There is no record evidence of their agreement to assume joint responsibility for management of the case. And there is no finding that the total fee was reasonable,'' Rossi wrote in the motion for reconsideration.

He also maintains there are conflicting decisions out of appellate courts that hear cases in Cuyahoga and Franklin counties. If a conflict is certified by the 11th District it would trigger an appeal to the Ohio Supreme Court to sort out the issue.

Last June, Kontos sent the case to the Trumbull County Bar Association to resolve.

In July, the local bar sent the dispute to the state bar organization to resolve the matter, citing conflicts and that they cap fee disputes at $50,000.

Kontos pointed out in his decision that Bauer had no written agreement to split fees with White, who was one of the attorneys who won the $13.9 million verdict in the local malpractice case. White filed the motion with Kontos to have the case dismissed and settled by the bar.

After a jury decided the malpractice case, the record $13.9 million award was reduced to $9.7 million by virtue of a set off for $2.4 million that plaintiffs received for settling with co-defendants. The malpractice case is still being appealed.

The case involved an 11-year-old girl who along with her parents sued a doctor and won after suffering catastrophic medical problems when she was born.

Before the case was heard by a jury, the girl and her family settled for $6.5 million with another doctor, who since died, and a local hospital. The settlement remains with the local Probate Court until the fee-splitting case is resolved.

An American Bar Association group plans to meet this week to mull a question stirring up debate around the legal community: can someone who is not a lawyer own part of a law firm?

For 21 years, the answer has been no - except in the District of Columbia, the only jurisdiction in the United States that allows law firms to share fees and profits with non-lawyers.

Now, the ABA Commission on Ethics 20/20, is considering whether to urge the organization to endorse extending D.C.'s rule to other states.

The commission, scheduled to meet Thursday and Friday at WilmerHale in the District, has yet to take a position on the matter. But a working group within the commission, co-led by George Jones, a Washington partner at Sidley Austin, is recommending the commission propose a limited form of nonlawyer ownership that lets non-lawyers have financial interest in the firm and share in its profits.

"Small firms in particular are increasingly interested in having non-lawyer partners," according to a December draft letter the commission published to seek comments from lawyers and bar associations. "These firms believe that there is or will be client demand for the legal services that firms with non-lawyer partners are well-positioned to provide."

The concept of non-lawyer partners has long prompted a philosophical debate among lawyers, with one side cautioning that non-lawyers with no legal ethics training shouldn't be allowed to influence how a law firm represents clients.

"Traditionally, law firms have been owned and controlled solely by lawyers, and they're bound by a certain regulatory structure," said Jamie Gorelick, a partner at WilmerHale who co-chairs the Commission on Ethics 20/20. "The concern is that a non-lawyer would not be similarly bound and doesn't have the same ethical rules as lawyers."

On the other side are those who say bringing in non-lawyer partners presents an opportunity for law firms to add client services, and that just because a firm is owned by non-lawyers doesn't mean attorneys lose their independent judgment.

"There is no evidence that lawyers are incapable of practicing in conformance with [ethical] rules in organizations owned by or run by non-lawyers," said Jones, of Sidley Austin. "In-house lawyers practice law in conformance with the rules even though the organizations from which they practice are owned by non-lawyers."

Lobbyists as partners

Many D.C. firms that have non-lawyer partners do so in the government affairs area - such as election law boutique Utrecht & Phillips, co-founded by former Hillary Clinton attorney Lyn Utrecht, which lists on its Web site government relations specialist and former Clinton campaign manager Patti Solis Doyle as a non-lawyer partner. Likewise, at Ryan, MacKinnon, Vasapoli and Berzok, legislative specialist Jeff MacKinnon has been a non-lawyer partner for 16 years, according to the firm's site. Neither firm responded to requests for comment.

The rule has much broader reach, giving architects at land-use firms, social workers at family law firms and scientists at intellectual property firms a chance to share in the profits. There are some limitations: non-lawyers must be employees of the firm, not simply an outside investor, and the firm's sole purpose must be to provide legal services; non-lawyers cannot have their own clients separate from those of the law firm.

D.C.'s unique rule attracts some attention from firms outside the Beltway that want to move to, or open offices in Washington because they're barred from having non-lawyer partners in their own state, said Zuckerman Spaeder attorney Mark Foster, a legal ethics expert who advises law firms that want to add non-lawyer partners on how to comply with the rules.

"One is a well-established personal injury firm that has a doctor who finds cases for them," Foster said. "They want him to be partner to share in profits. Another firm is in a state that has restrictive bar rules and they want the benefit of the looser rules in D.C."

No D.C. law firm with non-lawyer partners has faced disciplinary action over non-lawyers interfering with lawyers' professional judgment, the commission's draft letter noted.

Elsewhere, a 2007 law passed in the United Kingdom allows law firms there to have non-lawyer partners, and rules prohibiting the practice here - with the exception of D.C. - could hinder cross-border mergers, Jones said.

"If a D.C. firm wanted to partner with a U.K. firm that had non-lawyer partners, that would be permitted, but if a New York firm wanted to merge with a U.K. firm with non-lawyer partners, it'd raise substantial questions," he said.

Sunday, April 8, 2012

A state district judge has banned two assistant district attorneys assigned to his courtroom from returning, ruling that they committed prosecutorial misconduct and don't have "the innate intellect of a fifth-grader."

Bill Schultz and Forest Beadle were working as family violence prosecutors, trying Silvano Uriostegui on a charge of aggravated assault with a deadly weapon in the 158th District courtroom of Judge Steve Burgess. After Burgess' March 2 ruling that they willfully withheld exculpatory evidence from the defense - evidence that would have helped in his defense - Schultz was moved to the district attorney's civil division and Beadle was moved into the 16th District Court.

Both men declined comment, citing policy to refer questions to the first assistant district attorney, who acts as spokeswoman for the department.

District Attorney Paul Johnson has defended the two prosecutors, and Jamie Beck, first assistant district attorney, said they were not disciplined but rather counseled on the law as it pertains to the sections the judge ruled they violated during that trial. She said they would be required to take remedial courses in issues surrounding exculpatory evidence.

Beck replied in answer to written questions for this story that she did not believe the two were guilty of prosecutorial misconduct.

"I think the case was dismissed by the judge based on the judge's findings that evidence favorable to the accused was not turned over to the defense and the judge found that action was willful," Beck wrote. "We do not agree with that finding, but still will not seek an appeal that the judge abused his discretion, which is the standard on appeal."

Defense lawyer Victor Amador represented Uriostegui at trial. He protested that he had not been given evidence vital to his client's defense prior to the trial when the victim of the assault testified that she never saw her attacker's face and referred to the person as "he or she." She testified that she only told police at the time that she believed it was her husband because of his smell and because the sole of one boot looked familiar, according to court records.

Amador told the judge he advised his client to plead guilty based on a positive identification and that the prosecutors had known for a month what the victim planned to say on the witness stand but never told him that. Prosecutor Bill Schultz acknowledged on the witness stand that he knew but said he believed her description was a positive identification.

Amador asked the judge to grant a mistrial "with jeopardy attached," which means that Uriostegui cannot be tried again on the charge. Burgess granted that request.

"This situation is unfortunate for everyone involved," Amador said in answer to a request for comment, and he declined further statements.

The issues stem from a 1963 U.S. Supreme Court ruling in Brady vs. Maryland that addresses a defendant's 14th Amendment rights to due process under the law. The court ruled that exculpatory evidence is material if the outcome of the trial would have been influenced had the evidence been disclosed to the defense. That case has become a benchmark for exculpatory evidence and lawyers commonly refer to these issues as "Brady issues."

The Denton case began May 7, 2009, at an apartment complex in the 400 block of North Loop 288. A Denton detective wrote in an affidavit for Uriostegui's arrest that officers found a broken window in a second-floor apartment and a badly injured woman on the ground. It was later determined that she had nine knife wounds, including two that burst her breast implants, and a broken back.

The victim was Maria Uriostegui. According to the police report, she told officers that she had separated from her husband and lived in the apartment with her two younger children. About a week earlier she had met a man on a Spanish-speaking chat line, and on that night she invited him to the apartment.

She told police that she was in her bedroom plugging a cellphone into a charger and the visitor followed her into the room. There was no light save for a television set. About that time someone started hitting her, she said, and she felt like she couldn't breathe and had no strength. She told the officers that her attacker was her estranged husband.

The visitor, Pedro Jose Melgar, left before police arrived. They reported finding him at his apartment with knife wounds. He told them he did not know the man who cut him but that he had jumped through the window to escape.

Silvano Uriostegui was arrested on two charges of aggravated assault with a deadly weapon. The judge appointed two other lawyers to defend him before Amador took the case. Both the other lawyers asked to be released from the defense.

Amador was appointed in March 2011. He filed motions for discovery of evidence in the case, including a motion for production of evidence favorable to the accused. He received copies of various documents including the Denton detective's affidavit naming Silvano Uriostegui as the person who stabbed Maria Uriostegui.

He never received any information that she was basing that ID on his smell and the sole of his boot, not on his appearance.

On Feb. 13, 2012, on the advice of his attorney, Uriostegui agreed to plead guilty and seek a jury's assessment of punishment on the charge that he assaulted his wife. In return for the guilty plea, prosecutors agreed to drop the charges that he also assaulted Melgar, who disappeared after the assault and has not been found to testify against Uriostegui.

On Feb. 14, the prosecutors began their case before a jury. Court records show Maria Uriostegui testified that she had been married to the defendant for about 21 years and they have four children. She testified that after her husband's business failure, he became moody and depressed and often didn't go to work. She worked two cleaning jobs that put her out of the house from about 4 a.m. to 1 p.m. and then from 6 to 11 p.m. He was jealous and accused her of cheating. She moved out and filed for divorce.

She told Denton police she was afraid of him and obtained a protective order.

After a break in the proceedings during the jury trial, Amador asked the judge for a mistrial, based on the fact that the witness said she could not identify her attacker except by smell and the sole of his boot. This was different from her testimony in the hearing for a protective order, when she testified that it was her husband who attacked her, he argued.

Schultz argued that witnesses in family violence cases often change their testimony because of pressure from family, and that this was a prior inconsistent statement, not perjury. Schultz said that he worried at one point because another man had once assaulted the victim and after he learned that she claimed not to have seen her attacker's face, he checked on that man and learned he was in prison and could not have been the person who stabbed her.

At that point Burgess questioned Maria Uriostegui himself. She told him that she "supposed" it was her husband because he had threatened her and because the man smelled like her husband. She said that she told the prosecutors this earlier. Burgess at first denied the mistrial but under further discussion, he granted it.

The defendant had been free on $100,000 bail, and Burgess revoked bail pending a retrial.

Three days later Amador filed a writ of habeas corpus, asking the judge to reinstate bail. He also asked Burgess to rule that his client could not be retried on the case because the prosecutors intentionally misled him about the key element of the case, the identification by the witness that it was her husband who stabbed her.

Amador told the judge that the prosecutors had forced him to ask for the mistrial based on leading him to believe the victim had positively identified his client when she had not. Burgess ruled March 2 the defendant could not be tried again for the aggravated assault against his wife.

But that still left the case against him in the stabbing of her visitor that night. It was supposed to be dropped in the plea bargain, but the plea bargain was not fulfilled. Since Maria Uriostegui has testified that she cannot identify the man who came into her apartment that night and since the other man has disappeared, it is unlikely that trial will ever take place. Beck, the assistant district attorney, acknowledged in a written reply that Melgar has not been found and it was unlikely her office would proceed on the case.

Texas Disciplinary Rules of Professional Conduct provide that such conduct as the two prosecutors were found to have committed should be reported to the disciplinary council of the State Bar of Texas. Johnson, in a three-page letter to the council, wrote that he was satisfying that requirement but that he was not submitting a grievance against Schultz and Beadle. He defended their actions, stating that they did not intentionally withhold evidence.

In his ruling on the writ of habeas corpus, the judge was detailed in his criticism of the way the evidence was handled.

"My jaw dropped to the ground when Mrs. Uriostegui testified the way that she did," Burgess said in his ruling. "I was shocked. And for the state to actually know this and not disclose it, the only good thing I can say from this miserable hearing is at least Forrest Beadle told the truth and was not evasive and was straightforward. I don't particularly like his answers, but he at least was honest."

Burgess apparently was referring to notes Beadle made during the hearing that were subpoenaed by Amador that Amador was making another "[expletive] Brady motion."

Burgess said that he could not fathom how someone who had been to law school and had practiced as long as Schultz and Beadle could not know they were violating rules of exculpatory evidence.

"And how disingenuous it is to get up here and testify that you don't think that it's Brady that the victim can't identify by face or by anything other than smell and a boot who the attacker is ... ," he said. "I'm going to have to ban both Mr. Beadle and Mr. Schultz from my courtroom. They're not allowed to appear in this courtroom until I rule otherwise."

Burgess said that it was particularly sad that the actions of the prosecutors robbed Maria Uriostegui of justice for the injuries she suffered. He found that the prosecutors goaded the defense into entering a plea bargain to avoid an acquittal in the case.

"A woman that was knifed nine times in the gut and elsewhere doesn't get justice because nobody can read Brady, understand Brady, or has the innate intellect of a fifth-grader," the judge said.

When the economy took its turn for the worse, organizers of a program that provides people with free legal services expected to see more demand, but when the opposite happened, they decided to try and make the program more accessible.

For years the First Saturday Legal Clinic has been helping people with financial needs get access to legal help. The program, a service of the Bay County Bar Association, provides people who meet income qualifications with access to attorneys for civil matters like foreclosure, Social Security or immigration issues.

"We wanted to make it more known…and we wanted to make it more accessible," said Mike Dickey, a member of the bar association's Pro Bono Legal Committee.

As the name suggests, the clinic is available without an appointment on the first Saturday of eachmonth (except this month, when it will postponed until April 14 because of the holiday). In the past, clients would need a referral from Legal Services of North Florida, which screens potential clients to make sure they meet income requirements.

The income limit is up to 125 percent of the federal poverty guidelines, which range from $13,963 a year for an individual to $48,613 for a family of eight.

Beginning thismonth, the program will screen potential clients at the door, which they hope will attract people. Ideally, a person could show up and sit down with a lawyer for a consultation, but the clinics are staffed by volunteer attorneys, so a client with a need for a specialized service might have to make do with a referral.

"That's certainly the goal, that everybody who walks through the door will talk to a lawyer," Dickey said.

There are three types of cases the clinic doesn't offer help with: criminal cases, juvenile cases anddelinquency cases. There are already publicly available options for clients in need of those services, said Dede Rowan, who also a member of the Pro Bono Legal Committee.

Saturday, April 7, 2012

In January, Deanna DeBaeke plugged her name into Google * and was shocked at what she found.

Right there online were three reports containing the Sonoma County resident's confidential medical information relating to her treatment at Santa Rosa Memorial Hospital a year earlier. Her height and weight, smoking history, blood pressure and patient account number and treatment dates were available for friends, neighbors, even potential employers, to see.

DeBaeke decided to take legal action * in a way that puts her at the vanguard of a new strain of litigation. She's a name plaintiff in a proposed class action against the hospital system for violating California's strict medical information privacy laws. Her attorneys, San Francisco plaintiffs shop Keller Grover, filed the complaint in Sonoma County Superior Court a week ago.

The potentially multimillion-dollar case is the latest in a flurry of privacy data breach actions targeting hospitals, medical services providers and at least one health insurance company across California. Recent pro-business court decisions have made certain consumer class actions less attractive, and plaintiffs lawyers are on the lookout for other lines of business. The combination of a state-law specified damages figure of $1,000 per person per violation and the massive scale of potential breaches has plaintiffs lawyers salivating and potential defendants bracing for a fierce fight.

With hospitals pushing to put patient records into electronic form, all it takes is one lost laptop or a single data security lapse * and the personal information of tens of thousands of people is exposed to a vast audience. According to the Department of Health and Human Services, the personal medical data for more than 11 million people have been improperly exposed during the past two years.

Still, filing health-related privacy cases as class actions is untested territory, and attorneys say new law will be made in the next few years. That means attorneys and the courts will be dealing with issues of first impression.

"The privacy data breach area offers some new opportunities to expand the types of cases that we're handling," said Eric Grover, whose seven-lawyer firm has been known for employment and nonhealth-related consumer protection cases. "When we saw the scope of what was happening, and the number of breaches that have occurred across the country in recent years, we saw that this was not a unique circumstance, and we should educate ourselves about the subject matter."

A month after DeBaeke's Internet search, the hospital and its parent, St. Joseph Health System, confirmed that her personal information, including lab results, had been freely available online for months.

It turns out DeBaeke was one of roughly 31,800 patients whose information St. Joseph left unprotected. The hospital offered a year of free credit monitoring services to cover the risk of identity theft, but no monetary relief.

DeBaeke was hardly the only patient who took her outrage to the courts: St. Joseph is facing three other proposed class actions filed in the past two months for the same security lapse.

Keller Grover has made class actions over such data security breaches one of its new specialty areas. A number of other California plaintiffs firms see the potential for big money in the health care arena, including San Francisco's 22-attorney Girard Gibbs; five-attorney Ram, Olson, Cereghino & Kopczynski; and 16-lawyer Los Angeles firm Kabateck Brown Kellner. The firms are behind class actions filed against Health Net of California, Sutter Health and Stanford University Hospital * all brought within the past year under California's Confidentiality of Medical Information Act of 1981 and involving the mishandling of personal data.

Plaintiffs powerhouse Lieff Cabraser Heimann & Bernstein has also been looking into the medical privacy breach that led to the public online posting in September 2010 of 20,000 Stanford Hospital emergency room patients' data over the course of nearly a year. Among the information exposed: names, diagnosis codes, discharge dates and billing charges.

It's clear the health care industry views the CMIA as a serious risk. Kabateck, who's also the president-elect of Consumer Attorneys of California, said McKesson Corp. lobbied Sacramento legislators about a year ago to remove the $1,000 damages clause from the law. The health care information technology provider pushed to make the changes retroactive, Kabateck said, which killed any potential deal. "I don't think that any of these medical providers will go quietly into the night," Kabateck said. "I think they'll fight this any way they can, but I think the statute is clear on its face about what it was intended to do about statutory damages."

"Patient privacy is not a new area," Pillsbury Winthrop Shaw Pittman partner Sarah Flanagan said. "What's new is class actions directed at security breaches that potentially involve thousands of patients."

Flanagan, who represents Stanford Hospital in a data breach case filed in September, said health care privacy litigation used to come in the form of individual actions against a hospital or medical services provider. But CMIA's $1,000-per-instance clause opens the doors to potentially multimillion-dollar awards if a hospital's entire patient roster is leaked online, she and other attorneys say. If the disclosure is done willfully or negligently, the fines and penalties can run up to $250,000 per violation for licensed health care professionals who leak information for financial gain.

"You've seen these cases in the commercial setting," Flanagan said. "There have been plenty of credit card and other commercial cases in which privacy has been an issue." The law in those cases is further along, Flanagan said. Now the plaintiffs bar has trained its eyes on the health care industry, which offers a unique regulatory scheme, she said.

Flanagan says the courts will have to answer a number of new questions about the language in the law and its application.

For one thing, Flanagan says the law was not written with class actions in mind. One of the issues being challenged now is what plaintiffs have to prove to establish a negligent violation, which she said is necessary to qualify for the $1,000-per-breach award. Flanagan also questions how appropriate it is to aggregate what she said was intended to be nominal damages into a multimillion number that she calls "disproportionate to any harm to the plaintiffs and to the violation." The court of appeals hasn't yet ruled on these issues under the CMIA.

Plaintiffs lawyers concede the economic valuation of these cases is still a big unknown, said Jeffrey Cereghino of Ram, Olson, Cereghino & Kopczynski, co-lead counsel in the Health Net and Sutter cases.

"The damages component and how the statute might be perceived is a significant unknown," Cereghino said. Still, he pointed to a case he said shows how seriously medical privacy is being taken in other parts of the country: The Connecticut attorney general's office slapped a $370,000 fine on Health Net of Connecticut Inc. two years ago for a massive security breach involving the personal data of about 1.5 million customers.

"We can learn two things there: Health Net has had this problem before, that there's a pattern of behavior * that's always going to resonate with a jury * and second, there was sufficient basis for the Connecticut AG's office to assess a penalty," Cereghino said.

Cereghino isn't worried about proving negligence, given the wide availability of encryption tools and the ability to create security protocols. "Servers don't walk off by themselves and computers with unencrypted data do not suddenly disappear," Cereghino said. "Defendants have a duty to protect this information and fail to do so, and that is negligence pure and simple."

And other plaintiffs lawyers don't seem concerned about getting class certification. Grover said there's really not any individualized issue in these cases. "This is about as common as it gets. St. Joseph, for example, admits that this set of data for 30,000 or so patients was found on the Internet because they said, 'We made a mistake,'" he said, quoting a February notification letter his clients received.

Grover says case law is on the plaintiffs' side regardless of whether the Legislature intended its statute to allow for class actions. "There's nothing in the labor code that authorizes a class action for not paying overtime, yet there've been thousands of overtime class actions filed in California over the last 10 years," he added.

The recession, high foreclosure rates and other economic woes in recent years have meant more people need lawyers - especially those who can least afford one.

The number of cases taken on by the Legal Aid Society of Middle Tennessee and Cumberlands and the Nashville Pro Bono Program has increased 11 percent since 2007.

"We saw a big jump in need as the economy worsened," said Lucinda Smith, director of the Nashville Pro Bono Program. "We are only able to reach a small part of the total need of people who are low income."

Last year, 810 lawyers volunteered their time through the pro bono program and nearly 60 more are helping out this year to meet the need, Smith said. That’s in addition to the Legal Aid Society's own staff attorneys.

The Legal Aid Society of Middle Tennessee and the Cumberlands serves a 48-county region and helps coordinate the Nashville Pro Bono Program.

Although the number decreased last year from a peak in 2010, the overall caseload still is significantly higher than it was before the economy began slumping, according to figures provided by the Legal Aid Society.

The two groups handled 7,991 cases last year, down from 8,703 in 2010 but up 11 percent from the 7,164 handled in 2007.

The number of attorneys volunteering their time in recent years appears to be on the rise statewide, as well, according to the Tennessee Access to Justice Commission.

The commission is in its third year and focuses on strategies to ensure people have access to legal services, according to Casey Mahoney, a spokeswoman for the state Administrative Office of the Courts.

Reporting required

The state Supreme Court requires lawyers to report their pro bono service each year. In 2010, 4,400 more lawyers reported volunteering their time than the year before, a 100 percent increase, according to a commission report that is headed before the Supreme Court later this year.

"Hopefully, the increase in reporting is due to an overall increase in the amount of pro bono work being done in Tennessee," the report states.

Civil cases only

All of the cases the Legal Aid Society and pro bono program take on are civil and range from family law and foreclosures to unemployment, Social Security and disability, Smith said.

Smith said the Legal Aid Society has to rely more on volunteer attorneys and the pro bono program because of budget cuts. She said 40 percent of the Legal Aid Society's budget comes from the federally backed nonprofit Legal Services Corp., which reduced funding last year.

Lawyers are stepping up, she said.

"There's nothing lawyers won't do if you identify the need and find a way to meet it," Smith said.

Smith said the Legal Aid Society and pro bono program work with some of the region's largest law firms, which regularly make attorneys available for volunteer work.

Attorney Casey Reed said he doesn't have to practice law full time and takes on pro bono cases.

"Maybe because of that, I feel some obligation to give back. I try to volunteer from time to time when Legal Aid calls."

Reed said he deals mostly with debtor and creditor cases.

"That seems to be where many of the problems are," he said. "Everybody owes somebody something. I just want to make sure they get a fair shake by the system."

Wednesday, April 4, 2012

U.S. Justice Department lawyers told a federal three-judge panel Tuesday that Texas legislators should not be shielded from testifying in a voter ID case.

But lawyers for state Attorney General Greg Abbott said deposing statehouse Republicans to determine legislative intent of the new photo ID requirement amounted to a "fishing expedition" by Justice Department attorneys.

The panel - Circuit Judge David Tatel, District Judge Robert Wilkins and District Judge Rosemary Collyer - is expected to rule soon on motions to expedite proceedings.

A tentative trial date of July 30 is being considered, which would allow the photo ID law to be implemented for the November general election.

But Justice Department lawyers are skeptical the case can be resolved that quickly, and lawyers for the state have signaled they could appeal unfavorable procedural rulings to the U.S. Supreme Court.

One such ruling could come on Texas' claim of privilege and its motion to block the federal government from deposing GOP lawmakers to determine their intent in passing the law.

Texas Solicitor General Jonathan Mitchell said the Justice Department is looking for a statement from a lawmaker that could be portrayed in court as discriminatory intent.

Daniel Freeman, a Justice Department voting rights lawyer, said the state's claim was baseless. He said Texas failed to meet its burden to show the law would not discriminate against minorities.

The Voting Rights Act of 1965 deemed Texas one of 16 states with a history of racial discrimination. Those states must get pre-approval or "preclearance" from the Justice Department or federal courts for any changes to voting laws or maps to prevent discrimination.

Last month, the Justice Department rejected Texas' request for preclearance of the photo ID law because the state failed to show that the new changes would not unfairly affect minorities, who vote overwhelmingly Democratic.

Texas estimated there are roughly 600,000 voters without passports, military - or Department of Public Safety-issued IDs, a small percentage of the state's 12 million registered voters. Thousands more lack convenient access to DPS driver's license offices, where they could secure a photo ID.

Justice Department lawyers said that while the state offered estimates and figures on Hispanics without proper ID, there is no similar information available for African Americans, Asian Americans or other minorities.

A four-attorney mergers and acquisitions group has left law firm Dewey & LeBoeuf for DLA Piper in New York.

The defections bring to at least 40 the number of partners known to have left 1,000-attorney Dewey since the beginning of the year.John Altorelli will join DLA Piper as co-chairman of the firm's U.S. finance practice and a member of the executive committee. The other attorneys are former Dewey partner Alexander Fraser, and Gerald Francese and Patrick Costello.

The group, which will become part of DLA Piper's corporate and finance practice, handles mergers and acquisitions, private equity deals and other corporate transactions.

All four men joined 4,200-attorney DLA Piper as partners on Tuesday.

A spokesman for Dewey declined to comment.

Roger Meltzer, global chairman of DLA Piper's corporate and finance practice, said he had started talking to Altorelli about eight weeks ago.

"We made a combined pitch to each other," he said.

The departures are the latest setback for Dewey.

In 2011 the firm hired a quantity of high-profile attorneys. The latest exit represents a 13 percent decrease in the number of partners, which totaled 304 at the end of 2011, according to the National Law Journal.

Dewey is saddled with large debt, including about $125 million in bond debt a rare liability for law firms.

Last week, Dewey said it was reorganizing its management structure, creating a five-partner office of the chair that will include current chairman Steve Davis.

Tuesday, April 3, 2012

Pending approval of the Legislature, the attorney general's office could receive an extra $2 million this fiscal year to pursue damages from the BP oil spill.

Without the money, Attorney General Jim Hood said he'll hire private attorneys on a contingency fee who'll put up the money to hire experts, a practice Republican lawmakers are seeking to end.

So far, "not one dime has been appropriated by the Legislature to fund the BP litigation," Hood said recently. "Until such time as the necessary funds are appropriated to fully cover the costs of this litigation, we will continue on our current course with the goal to recover all the money that is owed to the taxpayers of Mississippi."

Hood requested $10 million to hire outside attorneys and experts who can quantify damages from the April 2010 rig explosion and spill.

"The need for economic damage assessment has become urgent," Hood wrote in a letter dated Feb. 21 to Lt. Gov. Tate Reeves. The letter outlines the state's possible next steps in pursuing damages from BP and asked for Reeves' input.

Without additional funds, Hood wrote he would use a payment method in which a private lawyer takes a percentage of a potential settlement after successful litigation.

Republicans critical of Hood's use of the practice argue that private attorneys walk away with too large a chunk of the money. They've proposed legislation this session that would remove the attorney general's power to hire private lawyers on a contingency fee.

Hood, a Democrat, has described Senate Bill 2084, dubbed the "Sunshine" Attorney Act, as an attack on his power. The bill passed the Senate 32-17 and is pending in the House Judiciary A Committee.

Alluding to this conflict, Hood wrote in his letter, "This case is too important for us to allow political or philosophical concerns to impede the taxpayer from recovering every dime of loss that BP and its partners have caused and will cause the state of Mississippi."

Reeves, a Republican, wrote back that he would advocate for additional appropriations so Hood could hire lawyers and experts on an hourly basis.

"It is in the taxpayers' best interest to ... ensure the bulk of any potential settlement is directed to state accounts, not lining the pockets of private attorneys," Reeves responded in a letter dated Feb. 28.

In an amendment to another bill, Senate Appropriations Committee Chairman Eugene Clarke has included a $2 million request for Hood with those for other state agencies. The Senate passed the amended House Bill 1511 51-0 and transmitted it back to the House for concurrence or agreement.

At a recent Capitol news conference, Reeves said he isn't against hiring lawyers on contingency fees as a general rule.

"There are some instances in which continency-fee contracts make sense for taxpayers," he said. "Usually, it's when the outcome of the lawsuit is unknown.

"As it relates to BP," he said, "the outcome is known: They are going to spend a lot of money in the Gulf states, and I just think it's foolish for the state to be paying percentages of what could be hundreds of millions if not billions of dollars to lawyers for what amounts to a couple of months of work."

Businesses and individuals affected by the spill agreed March 2 to settle with BP. The company estimates it will shell out $7.8 billion.

Next, the federal, state and local government claims will be handled. Hood said if the state does not hire experts to compile a report of the total damages, it won't get as much money as it deserves.

Hood said Alabama has joined the federal class-action suit and will be paying lawyers a 4 percent continency fee.

Hood said in the letter that Mississippi, Florida and Texas have not joined the federal suit. He made that decision "in order to avoid a federal judge and the federal government from dictating the terms of the case to the state of Mississippi."

He said it could take years to assess the damage, but the federal government would pressure Mississippi into reaching a settlement within six months. Louisiana tried to stay out, as well, he said.

"The state of Louisiana attempted to fund its effort, but the initial appropriations of $10 million is said to be depleted by experts and lawyers working on an hourly basis," Hood wrote. "This left Louisiana no choice but to be dragged into the federal case against its will."

To date, Louisiana has spent $13.3 million on attorneys, experts, and other litigation expenses, according to a spokesperson for that state's attorney general's office. Reeves says $2 million will be sufficient for Mississippi.

"At $200 an hour, that's 1,000 hours that could be dedicated just in the next three months," he said, pointing out that the fiscal year ends June 30. "One thousand hours is 50 hours a week if one lawyer is working for 20 weeks non-stop, or two lawyers working part time, so there is a lot of money there.

"My view is," he continued, "that's the best bang for the buck of taxpayers."

Rep. Hank Zuber, R-Ocean Springs, said he trusts both the attorney general and leaders in the Legislature to vet the details of the request, but he stressed the significance of returning to Coast residents what they've lost.

"The spill affected everything from tourism to canceled conferences to a decrease in land value to the national perception," Zuber said. "You still have a problem with people in the other parts of the country believing that the seafood that comes out of the Gulf of Mexico is unsafe. That's going to take a lot of marketing to overcome, and for that, we need money."

Zuber said, too, the state should be compensated for permanent damage to the environment and efforts to heal the region's wildlife.

"It's extremely important to the state to get an equitable settlement," he said.

Seattle-based Avvo has a right to post its ratings of lawyers and doctors online.

That's according to the U.S. District Court in Seattle, which ruled last week that the website, with its health and legal directory and question and answer forum, is protected under Washington state's anti-SLAPP (strategic lawsuits against public participation) law.

The anti-SLAPP law protects people and organizations from threatened lawsuits that are intended to censor or intimidate them into removing or changing content. The law requires the party being sued to prove that the content in question is covered by the First Amendment. Then the party bringing the lawsuit must prove their likelihood of winning the suit.

Florida attorney Larry Joe Davis Jr. brought the lawsuit against Avvo in 2010, claiming libel against the company for its rating of him on its website.

This was not the first time Avvo had been sued. High-profile Washington attorney John Henry Browne - who is currently representing U.S. Army Staff Sgt. Robert Bales, accused of murdering 16 Afghan civilians while stationed in Afghanistan - sued Avvo in 2007 for its attorney ratings system and publication of state bar records. Although this was before Washington had an anti-SLAPP law, the case against Avvo was dismissed.

Then last week, the U.S. District Court ruled in Avvo's favor in one of the first tests of Washington's Anti-SLAPP law, which was passed two years ago. The decision requires the plaintiff to pay a $10,000 fine and Avvo's more than $50,000 in legal fees.

“This is really a victory for First Amendment rights in Washington,” Avvo attorney Josh King said.

The company uses search algorithms to seek out publicly available information online and create a profile for every doctor and lawyer in the country. The company also has created a rating system that is based on an individual's awards, publications, number of years in practice, sanctions, discipline and censure. The profiles also include an area for client reviews.

King said he gets at least two calls every week threatening the company with lawsuits for publishing information about lawyers and doctors online.

In addition to listing a Florida Bar Association sanction against Davis, Avvo had mistakenly identified Davis as an employment attorney, King said. He is actually a health care attorney.

"He found out when someone called him and wanted to hire him as an employment attorney," King said.

If a doctor or attorney wants to change the biographical details of his or her Avvo profile, including the type of practice, that person can "claim" the profile and update it. That will not affect the website's rating, however, which is determined and updated by Avvo.

"When you're bringing in disparate data and classifying it, you have to strike the right balance between how accurate it can be and how much data you want," King said.

He added that Avvo has flagged the source that led to Davis' and other Florida attorneys' practice misidentification. Davis' profile has since been updated.

Monday, April 2, 2012

Pending approval of the Legislature, the attorney general's office could receive an extra $2 million this fiscal year to pursue damages from the BP oil spill.

Without the money, Attorney General Jim Hood said he'll hire private attorneys on a contingency fee who'll put up the money to hire experts, a practice Republican lawmakers are seeking to end.

So far, "not one dime has been appropriated by the Legislature to fund the BP litigation," Hood said recently. "Until such time as the necessary funds are appropriated to fully cover the costs of this litigation, we will continue on our current course with the goal to recover all the money that is owed to the taxpayers of Mississippi."

Hood requested $10 million to hire outside attorneys and experts who can quantify damages from the April 2010 rig explosion and spill.

"The need for economic damage assessment has become urgent," Hood wrote in a letter dated Feb. 21 to Lt. Gov. Tate Reeves. The letter outlines the state's possible next steps in pursuing damages from BP and asked for Reeves' input.

Without additional funds, Hood wrote he would use a payment method in which a private lawyer takes a percentage of a potential settlement after successful litigation.

Republicans critical of Hood's use of the practice argue that private attorneys walk away with too large a chunk of the money. They've proposed legislation this session that would remove the attorney general's power to hire private lawyers on a contingency fee.

Hood, a Democrat, has described Senate Bill 2084, dubbed the "Sunshine" Attorney Act, as an attack on his power. The bill passed the Senate 32-17 and is pending in the House Judiciary A Committee.

Alluding to this conflict, Hood wrote in his letter, "This case is too important for us to allow political or philosophical concerns to impede the taxpayer from recovering every dime of loss that BP and its partners have caused and will cause the state of Mississippi."

Reeves, a Republican, wrote back that he would advocate for additional appropriations so Hood could hire lawyers and experts on an hourly basis.

"It is in the taxpayers' best interest to ... ensure the bulk of any potential settlement is directed to state accounts, not lining the pockets of private attorneys," Reeves responded in a letter dated Feb. 28.

In an amendment to another bill, Senate Appropriations Committee Chairman Eugene Clarke has included a $2 million request for Hood with those for other state agencies. The Senate passed the amended House Bill 1511 51-0 and transmitted it back to the House for concurrence or agreement.

At a recent Capitol news conference, Reeves said he isn't against hiring lawyers on contingency fees as a general rule.

"There are some instances in which continency-fee contracts make sense for taxpayers," he said. "Usually, it's when the outcome of the lawsuit is unknown.

"As it relates to BP," he said, "the outcome is known: They are going to spend a lot of money in the Gulf states, and I just think it's foolish for the state to be paying percentages of what could be hundreds of millions if not billions of dollars to lawyers for what amounts to a couple of months of work."

Businesses and individuals affected by the spill agreed March 2 to settle with BP. The company estimates it will shell out $7.8 billion.

Next, the federal, state and local government claims will be handled. Hood said if the state does not hire experts to compile a report of the total damages, it won't get as much money as it deserves.

Hood explained that Alabama has joined the federal class-action suit and will be paying a team of lawyers a 4 percent continency fee as such.

Hood said in the letter that Mississippi, Florida and Texas have not joined the federal suit. He made that decision "in order to avoid a federal judge and the federal government from dictating the terms of the case to the state of Mississippi."

He said it could take years to assess the damage, but the federal government would pressure Mississippi into reaching a settlement within six months.

Louisiana tried to stay out, as well, he said.

"The state of Louisiana attempted to fund its effort, but the initial appropriations of $10 million is said to be depleted by experts and lawyers working on an hourly basis," Hood wrote. "This left Louisiana no choice but to be dragged into the federal case against its will."

Attorneys for the family of slain black teenager Trayvon Martin are asking the U.S. Justice Department to review reports that prosecutors undermined a police investigation of shooter George Zimmerman by overruling a detective who wanted to charge him.

The Justice Department's civil rights division had already agreed to review the local Florida investigation into the racially charged case that has riveted the country. Waves of demonstrations have called for Zimmerman's arrest.

A leading expert in forensic voice identification told the Orlando Sentinel late last week that Zimmerman was not the voice in the call to 911 moments before Martin was shot.

Tom Owen, forensic consultant for Owen Forensic Services LLC, used voice identification software to rule out Zimmerman, the Sentinel reported. Another expert contacted by the Sentinel, utilizing different techniques, came to the same conclusion.

Zimmerman claims self-defense in the shooting and told police he was the one screaming for help.

Lawyers for Martin's family are preparing a formal request that the federal government also investigate the specific report that state attorney's office prosecutors interfered with a homicide detective who wanted to charge Zimmerman with manslaughter.

"We are asking the Justice Department to investigate that," attorney Benjamin Crump, who has been retained by the Martin family as it pressures authorities to arrest Zimmerman, told Reuters late Saturday. "We are concerned about interference in the investigation."

Zimmerman, 28, who is half white and half Hispanic, was a neighborhood watch captain who shot dead the 17-year-old in a gated community on Feb. 26 after following him upon considering him suspicious.

Zimmerman has disappeared from public view but his father and brother have come to his defense in media interviews, saying Martin attacked Zimmerman and Zimmerman feared for his life when he shot the unarmed teen.

Police declined to arrest him, citing Florida's "Stand Your Ground" law, which permits citizens to use deadly force when they feel threatened with death or great bodily harm.

Sanford police detective Chris Serino, unconvinced by Zimmerman's story of self-defense, wanted to charge him with manslaughter but was overruled by the office of State Attorney Norm Wolfinger, the prosecutor whose district includes the city of Sanford, ABC News reported on Tuesday.

Wolfinger has declined all comment since removing himself from the case on March 22. Gov. Rick Scott named a special prosecutor, Angela Corey, to replace Wolfinger on the Trayvon Martin investigation. Corey has yet to say if she intends to charge Zimmerman, who remains free but in hiding.

A law enforcement source who has been informed by Sanford police investigators told Reuters that Serino was eager to make a case but encountered resistance from the prosecutor.

"Chris would have made a recommendation for manslaughter but Norm Wolfinger's office wanted it to be a slam dunk," the source said. "They don't want to hear that this is wrong or that is wrong with the case. That's the way this county does business."

A separate report by TheGrio.com, unconfirmed by Reuters, said Wolfinger left his home the Sunday night of the shooting to meet with Sanford police in person.

"Why did he get out of his bed and go to the police station that night and overrule the lead investigator?" Crump said. "It doesn't fit well."

Crump said Justice Department lawyers investigating the case invited him to provide relevant updates, and that his team would forward its request soon.

Federal authorities could step into the case if they believe the state investigation is lacking, and the Justice Department periodically takes an interest in matters where there is a potential civil rights violation.